Texas’ corrections chiefs should consider freeing more feeble inmates and quit holding them until they die, some House budget writers said Thursday. Legislative budget staff members have criticized current practices, saying they sock taxpayers with huge costs for gravely disabled and geriatric inmates’ medical care in prison.

The Article introduces a new concept — “longitudinal guilt” — which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.” This change of mission is visible in the lower proof standards we apply to repeat criminal offenders.

The first section of this Article explains how plea-bargaining and graduated sentencing systems based on criminal history effectively combine together to lower the standard of proof for repeat criminals. The second section describes several additional procedural and evidentiary rules that further effectively reduce the standard of proof for recidivists. The third section argues that the net effect is a criminal justice system that is primarily focused on the identification of a class of “dangerous offenders” based upon their repeated interactions with the system over time rather than the accurate resolution of specific allegations of wrongdoing in individual cases, as is conventionally supposed. In a phrase, we have moved toward a system that constructs guilt “longitudinally.” The Article concludes with a few brief thoughts on the merits and demerits of longitudinal guilt.

As detailed in this local Connecticut article, a "measure that would create the nation's first statewide registry for gun offenders went before lawmakers Thursday at a public hearing on a package of gun bills." Here are the specifics:

The gun-offender database, modeled after the sex-offender registry, would give police a potent new tool to combat violence, said Senate Majority Leader Martin Looney (D-New Haven), who proposed the idea. Several cities, including New York City, Baltimore and Washington D.C., have established such requirements for gun offenders, but no state has done so, Looney said.

Just as those convicted of sex offenses must check in with local authorities, gun offenders would be required to register with local police. But unlike the sex-offender registry, the information on gun offenders would be accessible only to law enforcement officials.

The requirement would apply to people who committed serious gun violations such as those who used a firearm to commit a crime, Looney said. "No law-abiding citizen or sportsman would have anything to fear from this bill," he said.

During the hearing before the legislature's public safety committee, several lawmakers questioned why the registry was needed. They pointed out that a national crime database already contains information about gun offenders. But Looney and other supporters said the registry, unlike the national database, would give law enforcement the ability to pinpoint where the offenders live.

And, like the sex-offender registry, the mere fact of filing with local authorities "creates a psychological impact of knowing [the offender] is being watched more closely," Looney said....

Looney's proposal was supported by police but drew criticism from gun owners and their lobbyists. "If we're going to have a gun-offender registry, why don't we have a carjacking registry? ... Why don't we have a DWI registry?" asked Robert T. Crook, executive director of the Coalition of Connecticut Sportsmen.

Should Lindsey Lohan's lawyer be talking up interest in a plea deal for her client?

Since the entertainment media provides plenty of coverage of Lindsay Lohan's legal troubles, I am disinclined to blog much about her latest criminal case (at least until it gets to a sentencing stage). However, this piece from CNN, which is headlined "Lindsay Lohan would consider a no-jail plea deal, her lawyer says," prompts the legal ethics question in the title of this post. Here are the factual basics:

Lindsay Lohan will consider a plea deal on the charge that she stole a necklace from a jewelry store if she can avoid going to jail, her lawyer said Thursday. Attorney Shawn Chapman Holley insisted, though, that the grand theft charge is "entirely defensible."

The actress entered a not guilty plea in the case Wednesday before Los Angeles County Superior Court Judge Keith Schwartz, but the judge immediately revoked her probation related to a 2007 drunk driving conviction.

"Ms. Lohan maintains her innocence, and now that I've seen the police reports, I believe the case is entirely defensible," Holley said. "Having said that, we will entertain a discussion concerning a plea if it means no jail so that she can move forward with her recovery and her career."

Lohan was allowed to post bond on the theft charge and the probation revocation after a short hearing Wednesday. Schwartz will hold a hearing February 23 to decide if the theft charge warrants sending Lohan back to jail immediately on a probation violation. The court date will also be used to consider a possible negotiated resolution to the theft charge, he said.

Lohan's lawyer should, of course, be talking to her client and to prosecutors about resolving the changes against Lohan through a plea. But should she be talking up a plea deal to the media? Beyond the question of whether such public discussion of a plea is a good negotiating strategy, I would like to hear from experienced practitioners whether they believe this attorney's public plea deal talk is ethically kosher.

February 10, 2011

State judge refuses to overturn Racial Justice Act in North Carolina

As detailed in this local article, which is headlined "Racial Justice Act for death row inmates survives court challenge," prosecutors in North Carolina have failed in an initial attempt to derail litigation based on the state's new Racial Justice Act. Here are some of the particulars:

The fledgling Racial Justice Act survived its first challenge when a Forsyth County judge rejected contentions by prosecutors that the law was too sweeping to comply with the N.C. Constitution. Judge William Z. Wood issued his findings today in Forsyth County Superior Court....

The Racial Justice Act, passed narrowly along party lines in 2009, provides people convicted and accused in capital cases a legal avenue for challenging their plights using statistics and anecdotal evidence to bolster racial bias claims. Errol Duke Moses and Carl Stephen Moseley, death row inmates since the 1990s, are using statistics and findings from a Michigan State University study to claim racial imbalance and bias played a role in their trials and sentencing in Forsyth County.

Their cases are the first of the 154 death row inmates seeking relief under the law to get to a courtroom. "This vindicates the decision of the legislature to examine whether racial bias is tainting death sentences in this state," said Ken Rose, an attorney from the Center for Death Penalty Litigation representing Moses.

Earlier this week, prosecutors tried to pick apart the law, saying it was too sweeping to apply fairly across the state. David Hall, an assistant district attorney in Forsyth County, argued that the law does not specify whether the courts should consider race of the inmate, race of the victim or race of the jurors when considering bias claims. He voiced outrage that Moseley, a white inmate convicted of killing white victims, was alleging racial bias played a part in his sentencing....

With Wood's decision today, lawyers expect to get to the crux of the complaints in late March, when the next hearing is set. "I'm excited to be getting into the merits of this and that is — is the death penalty marred by discrimination?," Rose said.

Though the law survived its first test in the courts, it could be in jeopardy in the political arena. Republicans who gained control of the state Senate and House in January have talked about either severely narrowing the reach of the act or repealing it all together. Lawyers representing the inmates and defendants with cases already in the courts said they did not know the impact such a change would have on existing claims.

Via numerous e-mails, I have learned that The Smart on Crime Coalition, which describes itself as "a diverse coalition of the nation’s leading criminal justice reform organizations" has today released Smart on Crime: Recommendations for the Administration and Congress. The group describes this new report as "among the most comprehensive reports ever published to address the problems confronting America’s criminal justice system." Here is more about the report from some of the e-mails I received:

In its review of virtually every major criminal justice issue — from overcriminalization to forensic science — from juvenile justice to the death penalty — and from indigent defense to executive clemency — the report serves as both a source of information and a spur to action for the Administration and Congress....

Virginia Sloan, President of The Constitution Project, said about Smart on Crime, “The criminal justice system is supposed to be about justice — for victims, for those rightly and wrongly accused and convicted of crimes, and for all of us. But a system that costs too much and makes so many mistakes provides justice for no one. Smart on Crime contains an ever-increasing and bipartisan consensus on how to fix the problems that have for too long plagued the system.”

In addition to its recommendation that a National Criminal Justice Commission be formed, the report — developed and published by the Smart on Crime Coalition, a group of more than 40 bipartisan organizations and individuals — offers nearly 100 detailed policy recommendations across 16 criminal justice areas. While contributors do not necessarily have positions on each issue addressed, there was universal agreement that the current system — with its rampant cost, inefficiency, and injustices — is in urgent need of reform.

Because the full report runs nearly 300 pages and has so many policy recommendations covering so many areas, I fear that the report may be a little too much of a good thing. I suspect that everyone will be able to find stuff they like a lot in this report; I also suspect that everyone will be able to find stuff that they do not like much at all.

Interestingly, a brief review of the recommendations on the federal sentencing system dodges some of the biggest cutting-edge issues concerning the modern federal sentencing system. For example, through drug sentence gets lots of attention, the recent exponential growth of child porn and immigration caseloads, as well as concerns about increasing disparities in the wake of Booker, do not get any mention. Similarly, the death penalty sectionis focused on (dated?) recommendations for federal habeas corpus reform and for greater funding for capital counsel without any apparent attention given to the costly reality of such reforms or to now-pervasive new problems with lethal injection protocols.

I do not mean or want to give this mega-report too much fly-speck criticism. The group who put together the report, the report itself, and the website supporting the reportare all very impressive and make an important contributions to on-going discussions of criminal justice reform. But because a lot of the substantive suggestions in the report appear familiar, and because many of the report's good ideas have gotten so little political traction in the recent past, I am not yet optimistic that this report will significantly move the needle in many of the areas it seeks to impact. Justified(?) pessimism notwithstanding, I do sincerely hope that a significant number of the "nearly 100 detailed policy recommendations across 16 criminal justice areas" become a reality.

Welcoming "Law and Biosciences Daily Digest" to the blogosphere

I am extremely pleased to see that Professor Nita Farahany has started this great new blog which is to provide "relevant summaries of legal opinions (civil and criminal) in which cognitive neuroscience or behavioral genetics evidence has been introduced." As Nita notes here, in recent years "at least 2-3 opinions per day are published in which cognitive neuroscience or behavioral genetics evidence has been used."

I will be checking this new blog regularly, in part because the headings from many case digest entries spotlight that a lot of this action has sentencing elements: "Brain Dysfunction and Capital Mitigation" and "Neuropsychological Testing, Civil Commitment, and Sexually Dangerous Individuals" and "Brain Dysfunction and Cruel and Unusual Punishment."

"Conservative Principles and Prison"

The title of this post is the headline of this new commentary by Grover Norquist at the National Review online. Here is how it begins along with some additional passages of note:

When it comes to education, pensions, health care, Social Security, and hundreds of other government functions, conservatives are a beacon for fiscal responsibility, accountability, and limited government — the very principles that have made this country great. However, when it comes to criminal-justice spending, the “lock ’em up and throw away the key” mentality forces conservatives to ignore these fundamental principles.

With nearly every state budget strained by the economic crisis, it is critical that conservatives begin to stand up for criminal-justice policies that ensure the public’s safety in a cost-effective manner....

[An] extensive and expensive incarceration regime is worthwhile to the extent that it is the most cost-effective means of protecting the public; however, research indicates we have long since reached the point of diminishing returns, and numerous case studies can be used as evidence that more prison spending does not necessarily provide greater public safety than alternative approaches.

Consider Texas, a state legendary for being “tough on crime.” When the Lone Star State’s incarceration rates were cut by 8 percent, the crime rate actually dropped by 6 percent. Texas did not simply release the prisoners, however. Instead, it placed them under community supervision, in drug courts, and in short-term intermediate sanctions and treatment facilities. Moreover, it linked the funding of the supervision programs to their ability to reduce the number of probationers who returned to prison. These strategies saved Texas $2 billion on prison construction. Does this mean Texas has gotten “soft on crime”? Certainly not. The Texas crime rate has actually dropped to its lowest level since 1973.

The lesson from Texas is that conservatives can push reforms that both keep Americans safe and save money, but only if we return to conservative principles of local control, performance-based funding, and free-market innovation....

Conservative principles don’t have to change to make the criminal-justice system successful, but the stance conservative leaders take must. There is no reason that conservatives should be tied to the “lock ’em up and throw away the key” strategy; rather, we must stand for the very principles of limited government, federal accountability, and reduced spending that our forefathers effectively deployed. I ask my fellow conservative leaders to reconsider the “tough on crime” approach so that we can cost-effectively increase public safety.

Some recent and older related posts on the modern politics of sentencing issues:

Second Circuit demands application of old 100-1 crack mandatories ... with laments

Anyone following closely the debate concerning the application of the old crack laws to defendants whose sentences are not yet final will want to check out the Second Circuit's work today in US v. Acoff, No. 10-285 (2d Cir. Feb. 10, 2011) (available here). Here are the basics:

Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841. Although the district court accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment and admitted to by Acoff. The government appealed. We find that the district court acted unlawfully in sentencing Acoff to a term of imprisonment below the mandatory minimum. Accordingly, we vacate the judgment of the district court and remand the case so that Acoff can be resentenced consistent with the statutory mandate.

In the course of reaching this ruling, the panel opinion rejects a number of different arguments with which the defendant contended that his pre-FSA crimes ought only be subject to the new reduced post-FSA mandatory minimums. In addition, Judges Calabresi and Lynch write notable separate concurrences essentially to lament that the current state of the law seems to demand this outcome. Here is a section from Judge Calabresi's concurrence:

To the extent that one could have viewed what occurred in Congress as a response to a suggestion by courts that the sentencing statutes were heading towards unconstitutionality, one might question whether the traditional presumption against retroactivity should apply. In circumstances where the legislature has responded to a judicial suggestion of unconstitutionality, the appropriate starting point might well be the opposite: to assume that the change reaches back—at the very least to cover cases pending on appeal at the time of enactment (and perhaps further) — in the absence of a specific statement that some other metric should be used. The import of this shift in presumption would be to force Congress to focus specifically on the impact of a legislative change resolving a potential constitutional problem, a focus that is not necessary in the run-of-the-mill situation where no countervailing constitutional-level values suggest that a statute’s official “effective date” and its practical application date should be different. If the statute’s validity was becoming dubious, why should we assume that the legislature wished the statute’s constitutional dubiousness to apply in any case?

And here is a section from Judge Lynch's concurrence:

It is more difficult, however, to understand why Congress would want to continue to require that courts impose unfair and unreasonable sentences on those offenders whose cases are still pending. Such defendants still need to be sentenced, and there are few persuasive reasons why they should be sentenced pursuant to an unjust law when Congress has already replaced it with a more just one. It seems likely that simple congressional inattention produced this result: understandably focused on the much larger question of full retroactivity, when Congress decided against making the provisions of the FSA fully retroactive, it may simply have overlooked the distinguishable, and much smaller, category of past offenders who are still being sentenced for pre-FSA crimes.

This is simply a transitional problem. The class of affected past offenders who are still subject to mandatory sentences calculated pursuant to the old and unjust 100-to-1 ratio is presumably small. But it is no comfort to those, like the defendant in this case, who are sentenced unduly harshly under a now-discredited and repealed law, to know that a relatively small number of offenders share their predicament.

States asking feds for help in acquiring execution drugs

As detailed in this CNN piece, which is headlined "13 states ask for federal help on execution drug shortage," states are now looking to the feds for help with their lethal injection woes. Here are some details:

The U.S. Justice Department is reviewing a request from 13 states on how to acquire an execution drug no longer made in the United States and whether the federal government would share its supplies, a federal spokeswoman said Wednesday....

The U.S. shortage of sodium thiopental, also used as an anesthetic for brief surgical procedures, may force states to postpone executions and has forced them to look outside the country for a supply or come up with alternatives. Those substitutes haven't been without controversy. In December, Oklahoma used an anesthetic commonly used to euthanize animals to execute John David Duty for killing a cellmate.

Additional controversy surfaced last week about the drug's shortage when six death row inmates filed a federal lawsuit seeking to prevent the Food and Drug Administration from importing the drug, saying the imports may be unsafe.

In a letter last month to U.S. Attorney General Eric Holder, the attorneys general in 13 states said injection is the execution method in the majority of states with a death penalty, and protocols in those states use sodium thiopental, "an ultra-short-acting barbiturate."

"Sodium thiopental is in very short supply worldwide and, for various reasons, essentially unavailable on the open market," the letter said. "For those jurisdictions that have the drug available, their supplies are very small -- measured in a handful of doses. The result is that many jurisdictions shortly will be unable to perform executions in cases where appeals have been exhausted and governors have signed death warrants.

"Therefore, we solicit your assistance in either identifying an appropriate source for sodium thiopental or making supplies held by the federal government available to the states," the letter said....

Oregon is one of the 13 states signing the letter and has run out of the execution drug, said spokesman Tony Green of the Oregon Department of Justice. "It's pretty straightforward. We don't have a supply of the drug so we're looking for sources for them should we need them," Green said....

The other states signing the letter are Alabama, Colorado, Delaware, Florida, Idaho, Mississippi, Missouri, Nevada, Tennessee, Utah, Washington and Wyoming.

Texas, which wasn't part of the letter, performs the most executions in the country and is also facing a shortage of the drug, said spokesman Jason Clark of the Texas Department of Criminal Justice.

As detailed in this local article, "Kansas lawmakers are considering a bill that would bar some sex offenders from living within 2,000 feet of a school or licensed day care [and] would mark their driver's licenses with the word 'offender' — in different colors to show whether the victim was a child or adult." Here is more:

A previous, similar proposal failed over objections from rural legislators who feared it would send sex offenders to their districts. The bill under discussion now is crafted to ease their concerns....

Some, however, have questioned the effectiveness of residency restrictions in stopping sex crimes against children. Former Sen. Karin Brownlee of Olathe cited a 2006 report for the Ohio Sentencing Commission that found 93 percent of molestation victims were well known to their perpetrators....

Leslie Ramirez, a leader in the Scarborough-area campaign, told the Senate committee that she was aware of these studies. But she said they often lump all sex offenders together rather than look at pedophiles. She said other studies have found that sex offenders who target children choose to live near where potential victims gather....

Donna Sibaai of Wichita told the committee that many states and cities surrounding Kansas have residency restrictions for child sex offenders. In Missouri, she said, offenders cannot live within 1,000 feet of a school or child care facility. She said Oklahoma imposes a 2,000-foot restriction. "We need the legislation not only to help us protect our kids," she said, "we need it so we don't invite child sex offenders into our borders."

February 9, 2011

The Ninth Circuit today provides some proof that death row defendants do not always win in that court. In Dickens v. Brewer, No. No. 09-16539 (9th Cir. Feb. 9, 2011) (available here), a unanimous panel rejects an attack on Arizona's lethal injection protocol through an opinion that begins this way:

Like most states that impose the death penalty, Arizona uses a three-drug lethal injection protocol. Under the protocol, executions are carried out through the sequential administration of three chemicals — sodium thiopental, pancuronium bromide and potassium chloride. The problems that can arise from the use of such a protocol are well known: if the sodium thiopental is not administered correctly, the inmate will be improperly anesthetized during the execution and will experience tremendous pain and suffering from the administration of the pancuronium bromide and potassium chloride. Arizona’s protocol contains a number of safeguards intended to ensure proper anesthetization. In this appeal, we are asked to decide whether, despite these safeguards, Arizona’s protocol creates an unconstitutional risk that an inmate will be improperly anesthetized and thus experience extreme pain and suffering while dying.

The appellants — Gregory Dickens, Donald Edward Beaty, Charles M. Hedlund, Michael Emerson Correll, Robert Wayne Murray, Theodore Washington, and Todd Smith (referred to collectively as “Dickens”) — are death row inmates in Arizona. In 2007, Dickens brought an action under 42 U.S.C. § 1983, asserting that Arizona’s execution protocol violates the Eighth Amendment because of the risk of improper anesthetization. The district court granted summary judgment in favor of Arizona, holding that the protocol contains sufficient safeguards to protect against improper anesthetization and thus is constitutional under the standard set forth by the three-Justice plurality in Baze v. Rees, 553 U.S. 35 (2008) — not giving rise to a “substantial risk of serious harm” and not “sure or very likely to cause” serious pain and suffering.

On appeal, the heart of Dickens’s argument is not that the safeguards in Arizona’s protocol are inadequate. Dickens does argue that Arizona should be required to adopt some additional safeguards. His central assertion, however, is that evidence gathered during discovery raises issues of fact as to whether Arizona will follow the protocol and ensure that the existing safeguards are properly implemented. Because the protocol’s safeguards are adequate under the Baze standard and because there is no material issue of fact regarding compliance with the protocol, we affirm.

Extra style points go to any and all commentors who can include the title of a work by Charles Dickens in their reaction to this (seemingly sound) ruling.

Top judge in Missouri again talking up sentencing reforms

As detailed in this local article, headlined "Missouri's chief justice renews call for alternative sentencing programs," the head of the judiciary in the Show Me State is still looking to be shown some sentencing reforms. Here is how the article starts:

Missouri's chief justice urged lawmakers today to find solutions to the state's prison overcrowding and to keep politics out of the selection of judges in his annual address to the Missouri Legislature. In repeating two themes from last year's similar speech, chief justice William Ray Price, Jr., said that the state continues to incarcerate too many people who instead belong in diversion programs to help them kick drug and alcohol habits.

"We continue to over-incarcerate nonviolent offenders, while we have failed to expand drug courts and other diversionary and reentry programs to capacity," Price told a joint meeting of the House and Senate. "The result is a state that is not as safe as we want it to be and a waste of tax dollars."

Price pointed to the staggering growth of Missouri's prison system to make his point. In 1982, the state had 5,953 prisoners and a budget of $55 million. In 2009, there were 30,432 prisoners and a budget of $665 million.

Price said in his speech that he, Gov. Jay Nixon, Speaker of the House Steve Tilley and Sen. Rob Mayer, the president pro tem of the Senate, have signed a letter seeking a federal grant to study alternatives to incarceration in Missouri.

Last year, Price's words spurred legislative action. Lawmakers worked hard on a plan to close one prison and divert prisoners to drug courts, though the effort ultimately failed. The Legislature did, however, add to DWI courts, in part a response to Price's speech and a Post-Dispatch series about the failure of DWI laws in the state. "This prison based strategy is not working and it is costing us an arm and a leg," Price said.

This year, though, the words seem destined to fall on deaf ears. Gov. Jay Nixon has already indicated he doesn't support an effort to close a prison. And a Senate committee studying judicial issues ignored the concept in meetings early in the session.

"Iranian web programmer faces execution on porn charges"

The title of this post is the headline of this article from The Guardian, which provides a little comparative perspective concerning the severity of US sentences for child porn offenses. Here are the specifics:

A 35-year-old Iranian web programmer is facing imminent execution in connection with developing and promoting porn websites, charges that his family insist are trumped up.

Saeed Malekpour, a permanent resident of Canada who was arrested in October 2008 after his arrival in Tehran, is convicted of designing and moderating adult content websites, acting against the national security, insulting and desecrating the principles of Islam, and agitating the public mind.

Speaking from Toronto, Malekpour's wife, Fatemeh Eftekhari, said her husband has been informed of the verdict and has been transferred to solitary confinement for the sentence to be administered if the supreme court sanctions it. She says her husband was a web programmer who had written photo uploading software that was used in a porn website without his knowledge.

Human rights groups have expressed alarm over a sharp increase in the use of capital punishment in Iran. According to the International Campaign for Human Rights in Iran (ICHRI), 121 people have been hanged between 20 December 2010 and 31 January this year. An ICHRI report published in mid-January said that Iran has hanged an average of one person every eight hours since the beginning of the new year.

Last week prosecutor general Abbas Jafari Dolatabadi told reporters in Tehran that two people had been sentenced to death for running porn websites, without naming the convicts. "Two administrators of porn sites have been sentenced to death in two different court branches and the verdicts have been sent to the supreme court for confirmation," Dolatabadi was quoted by IRNA state news agency as saying....

Gloria Nafziger of Amnesty International in Canada, an organisation which has sought for Malekpour's sentence to be commuted said: "Amnesty International is very concerned that Saeed Malekpour is facing a death sentence in Iran after an unfair trial and reports that he was tortured in order to confess to his crimes."

Last month Iran executed Zahra Bahrami, a Dutch-Iranian woman convicted of drug smuggling, which resulted in a freeze of the Dutch diplomatic contacts with Iran.

Will California ever get to use its fancy new death chamber?

The question in the title of this post is inspired by this new article in the Los Angeles Times, which is headlined "Judge tours California's rebuilt death chamber; U.S. judge is reviewing the state's revised lethal injection procedures and facilities, five years in the making, to determine whether executions can resume. But other legal challenges could get in the way." Here are excerpts:

New legal challenges threaten to further delay California's effort to resume executions despite five years of costly reforms and reconstruction to meet a federal judge's concerns that previous procedures might have inflicted cruel and unusual punishment.

U.S. District Judge Jeremy Fogel on Tuesday toured San Quentin State Prison's new $900,000 execution facility, questioning state corrections authorities about the death penalty machinery and methods revised to address the concerns that led him to halt executions in 2006.

But Fogel's earlier worries about poorly trained executioners and cramped, ill-lighted conditions in the converted gas chamber where lethal injections took place may now be overshadowed by developments in other cases.

The sole U.S. supplier of sodium thiopental — the only anesthetic allowed under the California lethal injection protocols that Fogel is evaluating — has ceased making the drug. Attorneys for six death row inmates from California, Arizona and Tennessee have sued the U.S. Food and Drug Administration for failing to inspect and approve foreign-made versions of the drug when supplies were imported by the three states. While the outcome of that lawsuit remains uncertain, it has the potential to raise fresh legal questions that could further delay any restart of executions in California.

Asked after the formal fact-finding tour whether the suit against the FDA would factor into his decision, Fogel said, "It's not before me" in the case involving the execution of killer Michael A. Morales that was suspended in February 2006. "The source of the state's sodium thiopental is something the California Supreme Court is going to be asked to weigh in on, but it is not an issue in the Morales case at this point," Fogel said.

If the federal court in Washington, D.C., grants the prisoners' request for an injunction against importing sodium thiopental and orders the FDA to seize shipments that entered the country without its approval — as is the case with California's stock — the state could be forced back into the lengthy process of rewriting the execution laws. Other states' execution protocols aren't as specific as California's and they have been able to substitute another anesthetic for the scarce sodium thiopental....

California has 718 prisoners on death row, but only seven have exhausted all appeals. On Tuesday, Fogel, leading an entourage of lawyers and experts involved in the case, went room to room in the clinic-like facility, inspecting the hand-lettered drug vials arrayed on two trays in the infusion room, where the execution drugs are to be mixed and delivered via intravenous tubes threaded through the wall of the adjacent death chamber.

Fogel said he hoped to make a decision about whether executions can proceed "as soon as possible" but set out a schedule for further hearings that will run at least through spring.

"Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause"

The title of this post is the abstract of this new article by Professor Jordan Barry, which is now available via SSRN. Here is the abstract:

In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.

February 8, 2011

Two editorials urging new directions for incarceration nation

Today's New York Times and Columbus Dispatch both had editorial praising new state efforts to alter sentencing policy and prison practices. This Times piece, headlined "Expensive Prisons," starts this way:

In the last decade, crime rates and the prison population have declined significantly in New York State. Yet prison costs have soared. As part of Gov. Andrew Cuomo’s search for ways to cut spending, his new budget proposes two sensible steps toward the long overdue goal of closing down unnecessary prisons.

Ohio's prisons are bursting at capacity with low-level offenders, draining dollars that could be better used to provide services for law-abiding citizens, so a bipartisan reform plan introduced last Tuesday in the Senate is a welcome start.

The Supreme Court held in Apprendithat, except for the fact of a prior conviction, any facts that increase a defendant’s sentence beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. The trial judge in this case found three additional facts about the 1993 accident that increased Wilson’s sentence to 25 years to life: First, that Wilson personally inflicted bodily injury on Horvat; second, that the injury was great; and third, that the victim was not an accomplice. These facts weren’t necessary to Wilson’s conviction, and there was no purpose in challenging them at the time. The issue is whether these findings fell within the prior conviction exception.

Courts may reasonably disagree about the precise boundaries of the exception. See Kessee v. Mendoza-Powers, 574 F.3d 675, 676 (9th Cir. 2009). For example, it isn’t clearly established whether a judge may find the fact that a defendant was on probation at the time of an earlier conviction. Id. at 678. But it would be unreasonable to read Apprendi as allowing a sentencing judge to find the kinds of disputed facts at issue here — such as the extent of the victim’s injuries and how the accident occurred. Those are not historical, judicially noticeable facts; they require a jury’s evaluation of witnesses and other evidence. See United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005) (per curiam). Nor did Wilson have any reason to contest them when he was convicted in 1993. See Apprendi, 530 U.S. at 488 (emphasizing importance of procedural safeguards during earlier proceeding). The judge’s factfinding years later extended beyond any reasonable interpretation of the prior conviction exception.

In dissent, Judge Kozinski makes these points:

[U]nder AEDPA, Wilson must point to a Supreme Court holding clearly establishing that a judge may not find facts about the offense underlying his prior conviction. See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Read literally, Apprendi itself seems to limit judges to finding the mere fact of the prior conviction . But courts have sometimes read the exception more expansively. See, e.g., United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (Sotomayor, J.) (“In short, we read Apprendi as leaving to the judge . . . the task of finding not only the mere fact of previous convictions but other related issues as well. Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the ‘who, what, when, and where’ of a prior conviction.”). The Supreme Court hasn’t straightened all this out. The best we’ve been able to say is that the Court’s uncertain precedent “strongly suggests that the . . . exception does not extend to any and all facts related to a prior conviction.” Butler v. Curry, 528 F.3d 624, 644 (9th Cir. 2008) (emphasis added) (citing Shepard, 544 U.S. at 25-26 (plurality opinion)). This means that, as of 2008, we concluded that there was no clearly established Supreme Court authority as to whether the exception applies to anything other than the fact of conviction. The law certainly wasn’t clearly established when Wilson’s sentence became final five years earlier. Nor was the state court’s rejection of Wilson’s claim on these facts an objectively unreasonable application of the ambiguous language in Apprendi itself.

AEDPA deference can be a bitter pill to swallow.... In some habeas cases, we must reject what appear to us to be valid constitutional claims because the defendant’s rights have not yet been clearly established by the Supreme Court. This is such a case.

Ohio now has executions scheduled one-per-month through October 2011

The problems other states have been facing with legal and practical challenges to lethal injections do not seem to be slowing down the Buckeye State. As detailed in this local piece, which is headlined "Ohio sets execution dates for seven killers," the state now has one official execution date each and every month from February to October this year.

As detailed in this local article, a number of "national political-activist groups have asked Gov. John Kasich to pardon Kelley Williams-Bolar, the Akron mother who spent 10 days in jail for fraudulently enrolling her daughters in a school district where they were not residents." Here is more:

Three nonprofit political organizations -- ColorofChange.org, Change.org and MomsRising.org -- delivered 165,000 petition signatures to the governor's 30th-floor office in the Riffe Center yesterday. They urged Kasich to pardon Williams-Bolar from felony convictions that could keep her from becoming a schoolteacher.

The pardon is warranted, said Iris Roley, a member of ColorofChange and chairwoman of the Cincinnati chapter of the NAACP, so that Williams-Bolar "can have a life and provide a good life for her children."

Kasich has expressed sympathy for Williams-Bolar's situation and directed legal advisers to look into it. "We're still gathering facts on it," said Rob Nichols, the governor's spokesman. "People feel passionately about it, and we're grateful to them for expressing their concerns."

Before Williams-Bolar can be considered for a pardon, either the governor or she -- or her attorney -- must ask the Ohio Parole Board to take up the case. As of yesterday, no request had been made.

The Williams-Bolar case drew international attention after she was convicted of tampering with records to enroll her daughters, now 16 and 12, in the Copley-Fairlawn School District for the 2006 school year. The two girls attended the Copley-Fairlawn schools, where their grandfather lives, for two years, and their mother was indicted in November 2009 for falsifying records portraying the girls as residents of the district.

Williams-Bolar, 40, was found guilty on two felony counts and sentenced to five years in prison, but an Akron judge suspended the prison term and ordered her to spend 10 days in the Summit County jail....

During a news conference last week, Kasich used the Williams-Bolar case to advocate for open enrollment among school districts and for the legislature to approve additional school vouchers and charter schools so that more parents can choose the schools for their children.